Small Business Fairness Act of 2011

I rise in opposition to the Woodall amendment.

Madam Chair, we're striking the findings. By striking statements of constitutional authority for the bill, the amendment recognizes that many Members of the House question Congress' constitutional authority to pass H.R. 5. So for that reason, my colleagues, the findings are all important. Supporters of states' rights ought to take the next step and eliminate the section of the bill that preempts State law. Indeed, many supporters of the underlying bill have spent years arguing that decisions about health care are fundamentally prerogatives of the State.

So I have only 18 conservative or Republican scholars and leaders that agree with me, including the Heritage Foundation; the Virginia attorney general, Mr. Cuccinelli; the constitutional law professor at Georgetown Law Center; the distinguished Senator from Oklahoma, Mr. Coburn; some of our colleagues, including Judge Ted Poe of Texas, our colleague from Nebraska, Lee Terry, former judge Louie Gohmert, in particular, Ron Paul; the founder of the Tea Party Nation, Judson Phillips.

It goes on and on, where we are all in agreement that the findings are, indeed, critical and ought to be left in the bill. To take the findings out is incredible because we say that the Federal Government shouldn't be involved, that it's a State matter, and tort law, itself, is a State matter.

So for those reasons, Madam Chair, I am pleased to represent a bipartisan group of Members and scholars that very strenuously object to the findings being removed in this Woodall amendment.

Here's what conservative scholars and leaders have to say

about this hypocrisy:

Heritage Foundation: Despite H.R. 5's reliance on the

Commerce Clause, Congress has no business (and no authority

under the Constitution) telling states what the rules should

be governing medical malpractice claims.

Ken Cuccinelli, Virginia Attorney General: Senate Bill 197

takes an approach that implies ``Washington knows best''

while trampling states'' authority and the 10th Amendment.

The legislation is breathtakingly broad in its assumptions

about federal power, particularly the same 1 power to

regulate commerce that lies at the heart of all the lawsuits

(including Virginia's) against the individual mandate of the

2010 federal health-care law. I have little doubt that the

senators who brought us S. 197 oppose the use of the commerce

clause to compel individuals to buy health insurance. Yet

they have no qualms about dictating to state court judges how

they are to conduct trials in state lawsuits. How does this

sort of constitutional disconnect happen?

And if [S. 197, a medical malpractice bill] it were ever

signed into law--by a Republican or Democratic president--

would file suit against it just as fast as I filed suit when

the federal health-care bill was signed into law in March

2010.

Randy Barnett, Constitution law professor at Georgetown Law

Center and senior fellow at the Cato Institute: This bill

[H.R. 5] alters state medical malpractice rules by, for

example, placing caps on noneconomic damages. But tort law--

the body of rules by which persons seek damages for injuries

to their person and property--have always been regulated by

states, not the federal government. Tort law is at the heart

of what is called the `police power' of states. What

constitutional authority did the supporters of the bill rely

upon to justify interfering with state authority in this way?

Constitutional law professors have long cynically ridiculed

a `fair-weather federalism' that is abandoned whenever it is

inconvenient to someone's policy preferences. If House

Republicans ignore their Pledge to America to assess the

Constitution themselves, and invade the powers `reserved to

the states' as affirmed by the Tenth Amendment, they will

prove my colleagues right.

Senator Tom Coburn (R OK): What I worry about as a fiscal

conservative and also as a constitutionalist, is that the

first time we put our nose under the tent to start telling

Oklahoma or Ohio or Michigan what their tort law will be,

where will it stop? In other words, if we can expand the

commerce clause enough to mandate that you have to buy health

insurance, then I'm sure nobody would object to saying we can

extend it enough to say what your tort law is going to be.

Then we are going to have the federal government telling us

what our tort laws are going to be in healthcare, and what

about our tort laws in everything else? Where does it stop?

One of the things our founders believed was that our 13

separate states could actually have some unique identity

under this constitution and maybe do things differently, and

I think we ought to allow that process to continue as long as

we are protecting human and civil rights.

Congressman Lee Terry (R NE): If you're a true believer in

the 10th Amendment, then why are we not allowing the states

to continue to create their own laws and decide what's in

their best interest for their residents?

Congressman Ted Poe (R TX): The question is: does the

federal government have the authority under the Commerce

Clause to override state law on liability caps? I believe

that each individual state should allow the people of that

state to decide--not the federal government. . . . If the

people of a particular state don't want liability caps,

that's their prerogative under the 10th Amendment. . . . but

I have concerns with the current bill as written.

Congressman Louie Gohmert (R TX): The right of the states

for self-determination is enshrined in the 10th Amendment . .

. I am reticent to support Congress imposing its

will on the states by dictating new state law in their own

state courts.

Congressman Ron Paul (R TX): The federal government

shouldn't be involved. It's a state matter; tort law is a

state matter.

Congressman John Duncan (R TN): I have faith in the

people--I have faith in the jury system. It's one of the most

important elements of our freedom, and it was so recognized

in the Constitution, was felt to be so important, it was

specifically put into the Constitution in the Seventh

Amendment. And I'll tell you, it's a very dangerous thing to

take away rights like that from the people.

Senator Mike Lee (R UT) on tort reform: Congress needs to

be very careful when it enters into a uniquely state law area

like tort. So tort reform needs to be undertaken very

carefully insofar as it done at the federal leve1.

Judson Phillips, founder of Tea Party Nation: Some

conservatives complain opposing unconstitutional tort reform

rewards the trial lawyers. The trial lawyers may benefit from

stopping unconstitutional tort reform, but we fight to

protect the Constitution. In this case, the trial lawyers are

with us supporting the 10th Amendment.

Robert Natelson, senior fellow at the Independence

Institute: To be blunt: H.R. 5 flagrantly contravenes the

limitations the Constitution places upon Congress, and

therefore violates both the Ninth and Tenth Amendments. . . .

During the debate over ratification of the Constitution,

leading Founders specifically represented that the subject-

matter of H.R. 5 was outside federal enumerated powers and

reserved to the states.

John Baker, Catholic University law professor: House

Republicans hope to nationalize medical malpractice law,

which is traditionally a matter of state tort law, by passing

H.R. 5, a bill that would wipe out all state medical

malpractice laws and complete the nationalization of

healthcare. Passage of H.R. 5 would undercut arguments that

Obamacare is unconstitutional.

Carrie Severino, chief counsel and policy director at the

Judicial Crisis Network: Among other things, S. 197 sets a

statute of limitations for claims, caps damages and creates

standards for expert witnesses . . . but they are not within

the constitutional powers granted to the federal government

for the very same reasons Obamacare is not.

The law's own justification for its constitutional

authority should be chilling to anyone committed to limited

federal power. The bill's findings state that health care and

health insurance are industries that `affect interstate

commerce,' and conclude that Congress therefore has Commerce

Clause power to regulate them--even when it involves an in-

state transaction between a doctor and patient, governed by

in-state medical malpractice laws.

I yield back the balance of my time.

Would the gentleman yield?

I thank the gentleman for his courtesy. But why, as a new Member--and we welcome you to this body--why would we strike all the findings from H.R. 5?

Madam Chair, I demand a recorded vote.

Just to get the facts into this debate, I rise in strong support of the Bonamici amendment. I include for the Record the Congressional Budget Office letter to Chairman Dreier on March 19 in which the CBO estimates that enacting the provision will increase the deficits, if you use IPAB, by $3.1 billion.

Congressional Budget Office,

U.S. Congress,

Washington, DC, March 19, 2012.

Hon. David Dreier,

Chairman, Committee on the Rules, House of Representatives,

Washington, DC.

Dear Mr. Chairman: The Congressional Budget Office has

reviewed H.R. 5, the Help Efficient, Accessible, Low-cost,

Timely Healthcare (HEALTH) Act of 2011, as posted on the Web

site of the House Committee on Rules on March 12, 2012. CBO

estimates that enacting the bill would reduce direct spending

and increase revenues; therefore, pay-as-you-go procedures

apply. Together, the changes to direct spending and revenues

would reduce future deficits by $13.7 billion over the 2013

2017 period and by $45.5 billion over the 2013 2022 period.

Federal spending for active workers participating in the

Federal Employees Health Benefits program is included in the

appropriations for federal agencies, and is therefore

discretionary. H.R. 5 would also affect discretionary

spending for health care services paid by the Departments of

Defense and Veterans Affairs. CBO estimates that implementing

H.R. 5 would reduce discretionary spending by $1.1 billion,

assuming appropriations actions consistent with the

legislation.

H.R. 5 would impose limits on medical malpractice

litigation in state and federal courts by capping awards and

attorney fees, modifying the statute of limitations, and

eliminating joint and several liability. It also would repeal

the provisions of the Affordable Care Act (ACA) that

established the Independent Payment Advisory Board (IPAB) and

created a process by which that Board (or the Secretary of

the Department of Health and Human Services) would be

required under certain circumstances to modify the Medicare

program to achieve certain specified savings.

CBO estimates that the changes in direct spending and

revenues resulting from enactment of the limitations on

medical malpractice litigation would reduce deficits by $48.6

billion over the 2013 2022 period. CBO also estimates that

implementing those provisions would reduce discretionary

spending by $1.1 billion, assuming appropriations actions

consistent with the legislation. The basis for that estimate

is described in the cost estimate CBO transmitted on March

10, 2011, for the HEALTH Act as ordered reported by the House

Committee on the Judiciary on February 16, 2011. The

estimated budgetary effects have been updated to assume

enactment near the end of fiscal year 2012 and to reflect

CBO's current budgetary and economic projections.

CBO estimates that enacting the provision that would repeal

the Independent Payment Advisory Board would increase

deficits by $3.1 billion over the 2013 2022 period. The basis

for that estimate is described in the cost estimates CBO

transmitted on March 7 and March 8, 2012, for H.R. 452 as

ordered reported by the House Committee on Energy and

Commerce and by the House Committee on Ways and Means,

respectively.

H.R. 5 contains an intergovernmental mandate as defined in

the Unfunded Mandates Reform Act (UMRA) because it would

preempt state laws that provide less protection for health

care providers and organizations from liability, loss, or

damages (other than caps on awards for damages). CBO

estimates the cost of complying with the mandate would be

small and would fall well below the threshold established in

UMRA for intergovernmental mandates ($73 million in 2012,

adjusted annually for inflation).

H.R. 5 contains several mandates on the private sector,

including caps on damages and on attorney fees, the statute

of limitations, and the fair share rule. The cost of those

mandates would exceed the threshold established in UMRA for

private-sector mandates ($146 million in 2012, adjusted

annually for inflation) in four of the first five years in

which the mandates were effective.

Madam Chairman, I rise in opposition to this amendment.

To my colleague, Mr. Dent, hold up. You're giving complete immunity to hospitals, physicians, and providers for any emergency activity. Do you want to do away with all liability whatsoever because it's in an emergency room? Of course, you don't. But this amendment requires the Federal Government to pay for the medical errors committed and denies our government any ability to address or reprimand those who commit medical errors. You don't want to do that. You don't want to go that far.

The Federal Government would be responsible for all occurrences of negligence in an emergency room. Please. Ninety-eight thousand patients die every year due to preventable medical errors.

I reserve the balance of my time.

Announcement by the Acting Chair

But what we're doing in the amendment is to provide immunity to all hospitals and physicians and require the Federal Government to pay for medical errors committed by them.

Look, we have 98,000 patients dying every year due to preventable medical errors. I'm not slamming the docs and the hospitals. I'm saying that we don't want to provide complete immunity.

This Dent amendment, Madam Chairman, does just that: it provides complete immunity.

So I'm asking my colleagues to please slow down and realize that irreparable harm due to negligence in the emergency room--and we've got pages

and pages of examples--would be not subject to adjudication because of this amendment. It's a very dangerous amendment. It goes way too far. It's overbroad. And I urge my colleagues to carefully examine the consequences of this provision.

I reserve the balance of my time.

Madam Chairman, this amendment would actually lower the incentive to practice safe medicine, and I say this on careful examination.

I'm surprised that my colleague, the leader on the other side, himself a distinguished doctor, would be silent on this provision because it shields hospitals, employed physicians, even physicians who are already covered by private insurance; and physicians working in an emergency room setting will never be held accountable when they wrongfully injure their patient. That is my only reservation and objection to what is otherwise an honorably intended revision of this measure.

When hospitals and emergency room departments are not held accountable for medical errors and for negligence, then they have no incentive to offer quality care or hire competent physicians. Please, I beg you to carefully examine the dangers implicit in the Dent-Sessions amendment.

I yield back the balance of my time.

Madam Chairman, I rise in strong opposition to this amendment.

It is my position that within the good that this does is a poison pill. The good is that consumers would also benefit from a repeal of McCarran-Ferguson. We salute you. But the poison pill is that this measure would ban class actions on a claim for violation of antitrust law, which is the cleverest way of ending antitrust law. Unless you have a class action--well, my doctor-Congressman is not a lawyer, but without class actions, you can't bring a claim because nobody's going to file a suit on a $30 issue, 1 million people suing for $30 each. So it's a poison pill.

I'd like to yield such time as he may consume to the gentleman from Oregon (Mr. DeFazio), who had an amendment that had huge bipartisan support.

Madam Chairman, I yield myself the balance of my time.

We are here debating an overwhelming proposition offered by the gentleman from Oregon (Mr. DeFazio), which would have corrected this problem so beautifully. But now comes the poison pill, which says no more class actions. If you can't bring class actions in this matter, then there's no way people with small, valid claims can go into court and sue for 30 bucks.

Now, I think most people understand this without going to law school. If you eliminate class actions, you have effectively destroyed the McCarran-Ferguson repeal that we are bragging about. So it's a kind of undercover scheme. We pretend we're doing something good. We ignore DeFazio's overwhelmingly bipartisan supported provision, and we let the insurance company through, and they live to continue the vile practices that have been revealed and discussed in this debate.

I yield back the balance of my time.

I rise in opposition to the Stearns amendment.

Madam Chairman, the problem here is we don't have a problem. The 1997 law, which is called the Volunteer Protection Act, which I don't recall being mentioned, already provides immunity to all volunteers, not just doctors, to everybody, all volunteers, and has worked very effectively to ensure that nonprofit or government entities remain responsible for background checks.

I remind my colleagues of the Tenth Amendment to the Constitution, which is violated in H.R. 5, which preserves our system of federalism that allows States to legislate their own State tort laws and the qualifications of health care professions. What could be more simple than that?

This is one of the least debated provisions of our great Constitution. And so amendments that limit liability of health care professionals by our Congress and provide a virtual blanket immunity to any individual for any harm while acting in a volunteer capacity during a disaster violates the Tenth Amendment to the Constitution.

Madam Chairman, I reserve the balance of my time.

Madam Chair, I raise a question to my good friend from Florida.

If you feel strongly about this, why don't we modify the Volunteer Protection Act of 1997 rather than go into the business of a constitutional violation by changing all of the State laws with this wholesale limitation of liability? Why not do it in a more appropriate way, which we would be bound to consider with you?

I yield to the gentleman if he cares to make a comment on that.

The Volunteer Protection Act, I say to my colleague from Florida, is a Federal bill enacted in 1997, and that's the one that I would urge you to want to join with me and others to modify if there is a problem.

What you're doing by Stearns-Matheson is that you are now changing the law in all 50 States without going through the Volunteer Protection Act over which we have jurisdiction. That's the reason that I urge my colleagues that there is no need to upend existing State laws to provide unnecessary immunity.

I reserve the balance of my time.

Madam Chair, that's what we're doing under the Volunteer Protection Act is protecting our volunteers, our good citizens that come forward.

Please, I would like to focus on the amendment here that provides a lesser degree of liability protection while allowing weaker State standards to remain in place.

What we need to do is to preserve our system of federalism and support the Volunteer Protection Act which is constitutional, which does not violate the prerogative of the States to manage and legislate on their own tort laws and determine the qualifications of health care professionals.

Mr. Speaker, I demand a recorded vote.

Mr. President, when Congress passed the Trade Act of 2002, we made a promise to American workers that the potential loss of jobs due to trade policy will not equal the loss of health care coverage. The health coverage tax credit, HCTC, was designed to help American workers retain health insurance coverage when their jobs are displaced by outsourcing--and it has been a lifeline for these middle- class families who simply cannot afford coverage on their own. In 2010, an Internal Revenue Service survey found that 90 percent of HCTC participants are very satisfied with the program.

However, despite the high satisfaction rate among participants, far too many trade-displaced workers are not able to take advantage of this important program. Historically, fewer than 30,000 of the hundreds of thousands of potentially eligible individuals each year have participated in the HCTC. These hundreds of thousands of laid-off workers and retirees have been left uninsured because the program still has several barriers to enrollment, and despite the 65 percent subsidy provided by the program, the premiums are prohibitively high for some workers.

I have heard from steel retirees and widows in my state about how unaffordable the TAA health care tax credit is. I have been very frustrated, just as I was when this bill passed, that we have not been able to make the credit as affordable and accessible as possible for people who need it the most--laid-off workers and retirees who have very limited income.

The Government Accountability Office, GAO, and several consumer advocacy groups and research organizations have cited affordability as the primary reason for low participation in the HCTC program. The bottom line is that a 65 percent subsidy is simply not enough for many to afford the high cost of health insurance premiums. The American Recovery and Reinvestment Act of 2009, which reauthorized the Trade Adjustment Assistance Act, made several temporary changes to expand eligibility for and benefits of the HCTC program. These changes included an increase in the tax credit's subsidy rate from 65 percent to 80 percent of the health insurance premium, and expanded TAA eligibility to additional workers. The GAO released a report

last year on the credit and found that HCTC participation increased after these key Recovery Act changes took effect. As a result of the Recovery Act, many more people eligible for the program felt they could afford a qualified health plan and afford to pay their share of monthly premiums. However, 33 percent still could not afford their share of monthly premiums, even with the credit and these expanded provisions expired on February 13, 2011.

As our economy continues its recovery, it is critical to build on this program to help more Americans secure health coverage. The TAA Health Coverage Improvement Act would extend the Recovery Act's temporary provisions, and it would also address the issues of affordability by increasing the subsidy amount from 65 percent to 95 percent, retroactive to the date the Recovery Act expired.

This legislation also addresses the issue of affordability by placing limits on the use of the individual market, as Congress intended under the original law. The Trade Act of 2002 specified that the health insurance credit could not be used for the purchase of health insurance coverage in the individual market except for HCTC-eligible workers who previously had a private, non-group coverage policy 30 days prior to separation from employment. However, states have been allowed by prior Administrations to create state-based coverage options in the individual market for any HCTC beneficiaries, including those who did not have individual market coverage one month prior to separation from employment. As a result, there are people who had employer-based coverage prior to separation from employment who are now being covered in the individual market. This was not the intent of the law. To make matters worse, this interpretation undermines the consumer protections set forth in the law because individual market plans are allowed to vary premiums based on age and medical status. In one state GAO reviewed for its report, because of medical underwriting, HCTC recipients in less-than-perfect health were charged almost six times the premiums charged to recipients rated in the healthiest category. The legislation I am introducing today addresses this problem by clarifying that states can only designate individual market coverage within guidelines of 30-day restriction and by requiring individual market plans to be community-rated.

Second, this legislation guarantees that eligible workers will have access to comprehensive group health coverage. Group coverage is what people know. The vast majority of laid-off workers and PBGC retirees had employer-sponsored group coverage prior to losing their jobs or pension benefits. The TAA Health Coverage Improvement Act designates the Federal Employees Health Benefit Plan, FEHBP, as a qualified group option in every State, so that displaced workers nationwide will have access to the same type of affordable, comprehensive coverage they were used to when they were employed.

Third, the TAA Health Coverage Act clarifies the three month continuous coverage requirement. Under the original TAA statute, displaced workers are required to maintain three months of continuous health insurance coverage in order to qualify for certain consumer protections. Those protections are guaranteed issue, no preexisting condition exclusion, comparable premiums, and comparable benefits. Congress intended this three month period to be counted as the three months prior to separation from employment. However, the Administration has interpreted the three month requirement as three months of health insurance coverage prior to enrollment in the new health plan, which usually is after separation from employment and after certification of TAA eligibility. Many laid-off workers and PBGC recipients cannot afford to maintain health coverage in the months between losing their jobs and TAA certification and, therefore, lose eligibility for the statutorily-provided consumer protections. This legislation corrects this problem by clarifying that three months of continuous coverage means three months prior to separation from employment.

Fourth, this bill allows spouses and dependents to maintain eligibility for the health coverage tax credit if the worker or retiree becomes eligible for Medicare. Younger spouses and dependents of Medicare-eligible individuals have not been able to receive the subsidy because eligibility runs through the worker or retiree. This technicality is unfair to individuals who rely on health coverage through their spouses or parents.

Finally, this legislation streamlines the HCTC enrollment process and makes it easier for trade-displaced workers to access health insurance coverage. According to GAO, two of the factors contributing to low participation include a complicated and fragmented enrollment process and the inability of workers to pay 100 percent of the premium during the 3 to 6 months they are waiting to enroll in advance payment. This legislation includes a presumptive eligibility provision that allows displaced workers to enroll in a qualified health plan and receive the HCTC immediately upon application to the Department of Labor for certification. There is also a provision which directs the Treasury Secretary to pay 100 percent of the cost of premiums directly to the health plans during the months TAA-eligible workers are waiting for advance payment to begin. This legislation allows workers to be eligible for the HCTC even if they are not receiving training, an important provision that was included in the Recovery Act. The current training requirement subjects families to a loss of health coverage when transportation, relocation, or childcare issues interfere with an individual's ability to participate in training.

As a former Governor, I know how important Trade Adjustment Assistance is to individuals who have lost their jobs due to trade. In West Virginia, thousands of workers have lost their jobs as a result of trade policy. While adjusting to the loss of employment, these individuals still have to pay mortgages, put food on the table, and care for their families. Finding affordable health care adds a significant burden to their worries. The TAA health coverage tax credit is designed to help American workers retain health insurance coverage during this very difficult transition.

Since 2002, the HCTC program has been a lifeline for tens of thousands of participants. But for many others who face barriers to participation, the HCTC program is not living up to its potential. The GAO has given us a very specific diagnosis of the problems, and the Recovery Act has shown us that the situation can improve for trade- displaced workers. The TAA Health Coverage Improvement Act builds upon the Trade Act of 2002 and the lessons we have learned since in order to make the health coverage tax credit workable for eligible individuals and their families. I look forward to working with my colleagues to pass this important legislation.

Mr. President, today I am introducing the Strengthening America's Trade Laws Act, legislation that will protect American businesses and workers by ensuring that they can compete on a level playing field with foreign companies.

The legislation I am introducing today should be viewed as a placeholder for a more comprehensive updated bill that I plan on introducing after the recess. Given the potential for legislative action at any time on Trade Adjustment Assistance, the three pending Free Trade Agreements, and the continuing harm caused by illegally dumped foreign goods, I thought it was imperative that I introduce this bill today and move the discussion of our country's trade policy forward.

The Strengthening America's Trade Laws Act allows the government to live up to its commitment to protect American businesses by allowing the businesses being harmed by unfairly subsidized imports to have a seat at the table in trade dispute proceedings. It also strengthens countervailing duty laws that are used to impose tariffs on goods from countries like China that are being unfairly subsidized.

Importantly, my bill would prevent the World Trade Organization, WTO, from dictating American policy by mandating that Congress must approve of any regulatory change to American law that is meant to conform with an adverse WTO decision.

This bill goes after countries that use currency manipulation to keep their prices artificially low by allowing the American government to treat this manipulation as an unfair subsidy that can be responded to with countervailing duties.

My bill also allows a panel of judicial experts to review recent adverse WTO decisions to ensure that they were made correctly and that obligations are not being imposed on the United States that our government has not previously agreed to.

These steps are important because businesses like those in my home state of West Virginia face a constant threat from foreign made goods that are being sold at prices well below cost in an effort to drive American businesses out of the marketplace altogether. In West Virginia, we know all too well the impact these unfair practices can have, as numerous manufacturing businesses have closed in recent years in response to these challenges.

I have worked through the system to try to protect our employers, testifying numerous times before the International Trade Commission on behalf of West Virginia businesses, including our steel industry, in an effort to get the government to counter unfair subsidies and give American manufacturers a fighting chance in the global marketplace. It has become clear to me through the years though that the current protections are not strong enough and that more must be done to allow our businesses to compete. That is what I hope to accomplish with this bill. I am not asking for any unfair advantages for American businesses. I just want to allow them the opportunity to succeed on the merits of their ideas and their hard work.

I ask my colleagues to join me in supporting this important legislation and thank the chair for allowing me to speak on this issue.

Mr. President, I rise today to reintroduce legislation previously sponsored by a Member of the Commerce Science and Transportation Committee in the 111th Congress that would direct funds from the administrative, civil, and criminal penalties stemming from the Deepwater Horizon oil spill to fund coastal and marine restoration, research and education, as well as promote tourism and economic development in the coastal Gulf states. The bill that I introduce today, the Gulf Coast Restoration Act, is identical to the bill by the same name introduced in the 111th Congress and referred to the Commerce, Science, and Transportation Committee.

To remind my colleagues, under Senate Rule XXV(f), the Commerce Committee possesses broad jurisdiction, including over ``Coast Guard . . . coastal zone management . . . interstate commerce . . . marine and ocean navigation, safety and transportation, including navigational aspects of deepwater ports . . . marine fisheries . . . merchant marine and navigation . . . oceans . . . regulation of consumer products and services including testing related to toxic substances . . . science, engineering, and technology research and development and policy . . . transportation, and the transportation and commerce aspects of Outer Continental Shelf Lands.'' As Chairman of the Committee I am well aware that individual Members of my Committee have strong views on all of these issues.

In the coming weeks, the Commerce Committee will be reviewing and considering a legislative package in a renewed effort to respond the Gulf oil spill. My introduction of the bill today is intended to clearly establish that the Commerce Committee continues to hold strong views about how to direct funding from the assessed penalties back to restoring the Gulf economy and environment. It is also intended to assert the Commerce Committee will conduct its oversight over the promotion of commerce, as well as over ocean and coastal programs, and reserve its rights to review and consider the authorization of programs needed to support the economic recovery of the Gulf, and the long term restoration of Gulf ecosystems. Finally, introduction of this bill is intended to provide Commerce Committee Members with the opportunity to ensure that needed baseline science is put in place, along with emergency response technology and programs, to support improved offshore energy decisions in the future. I look forward to revising this bill following introduction to reflect the views of the Committee.

Mr. Speaker, I rise in opposition to the motion to recommit and strongly support H.R. 5.

Mr. Speaker, 2\1/2\ years ago in this body, we debated the Affordable Care Act, and I remember being part of that debate here on the House floor. Part of that debate was to increase access for American citizens and to maintain the physician-patient relationship.

I have a letter here that was signed by 75 of us, both Democrats and Republicans, opposing, in part, because in the House version of the Affordable Care Act the Independent Payment Advisory Board was not there.

This bill is very simple. H.R. 5 is to repeal the Independent Payment Advisory Board and to vote for malpractice reform, a very simple bill, one that should be easy to support. Let's just discuss and see what occurred.

Based on the Independent Payment Advisory Board--most seniors don't

know about this--after the $500 billion has been taken out to pay for a new benefit. The Independent Payment Advisory Board are 15 unelected bureaucrats, appointed by the President and approved by the Senate to oversee Medicare spending.

Why does this bring angst to a physician? I practiced medicine for 31 years in Tennessee. My concern is I've already seen two examples of this, and this will be the third.

The first is a sustainable growth rate, a formula based on how to pay doctors in Medicare. This was established in 1997. Each year--almost every year since then--the Congress has had the ability to change this because, why? We were afraid if reimbursements to physicians were cut, access to our patients would be denied.

Let's look at what's going on right now.

Two weeks ago in this body, we extended the SGR for 10 months, preventing a 27 percent cut to physicians. Well, as a doctor, what would this mean for me in providing care for my patients? Well, what this would mean is you couldn't afford to see the patients. With IPAB, a formula based on spending, not quality or access, what would happen, I believe, is that this would occur, this 27 percent--at the end of this year, a 31 percent cut, which would be catastrophic for our Medicare patients.

So it's a very simple bill. We don't want Washington-based bureaucrats getting in between the physician-patient relationship. Medical decisions should be made between not an insurance company, and certainly not 15 unelected bureaucrats in Washington. It should be made between a patient, the doctor, and that family.

The second part of this bill, very simply, is medical-legal malpractice reform.

When I began my medical practice in Tennessee, my malpractice premiums were $4,000 a year. When I left 4 years ago to come to Congress, $74,000 a year. During that time, from 1975 until I left to come here, there's basically one insurance company in Tennessee, and over half the premium dollars that were paid during that time went to attorneys, not to the injured party. Less than 40 cents of the malpractice premium dollar in that State have gone to people who have actually been injured. It's a very bad system.

The tort system we have for medical liability now is a very bad system. It needs to be reformed. No one has ever argued about paying actual damages. No one has ever argued about paying medical bills. It's the unintended consequences of this bill that have run the cost up at no value to patients.

I strongly encourage my colleagues to support this bipartisan bill, and I yield back the balance of my time.

Congress of the United States,

Washington, DC, December 17, 2009.

Hon. Nancy Pelosi,

Speaker, House of Representatives, Capitol Building,

Washington, DC.

Dear Madam Speaker: In July, 75 members of the U.S. House

of Representatives wrote to express strong opposition to

proposals, such as the ``Independent Medicare Advisory

Council (IMAC) Act of 2009'' and the ``Medicare Payment

Advisory Commission (MedPAC) Reform Act of 2009'' (H.R. 2718,

S. 1110, S. 1380), that would divest Congress of its

authority for Medicare payment policy and place this

responsibility in an executive branch commission or board.

This letter clearly stated opposition to the inclusion of

these or any other similar proposals in health reform or any

other legislation, but with recent developments, we, the

undersigned members, believe it is imperative to restate our

strong opposition to any proposal or legislation that would

place authority for Medicare payment policy in an unelected,

executive branch commission or board.

Consistent with the July letter, on November 7, 2009, the

House passed the ``Affordable Health Care for America Act''

(H.R. 3962) did not include provisions to create an unelected

Medicare board. Yet, at present, the Senate is considering

the ``Patient Protection and Affordable Care Act of 2009,''

which includes provisions to create an ``Independent Medicare

Advisory Board'' (IMAB) that would effectively end Congress's

authority over Medicare payment policy.

To create an unelected, unaccountable Medicare commission

as envisioned in the Senate's IMAB proposal would end

Congress's ability to shape Medicare to provide the best

policies for beneficiaries in our communities around the

country. Through the legislative process, and from Medicare's

beginning, Members have been able to represent the needs of

their communities by improving benefits for seniors and the

disabled, affecting policies that fill the health care

workforce pipeline, and ensuring that hospitals are equipped

to care for diverse populations across our individual

districts. Such a responsibility is one that is not taken,

nor should be given away, lightly.

These proposals would severely limit Congressional

oversight of the Medicare program, and to place this

authority within the executive branch, without Congressional

oversight or judicial review, would eliminate the

transparency of Congressional hearings and debate. Without

the open and transparent legislative process, Medicare

beneficiaries and the range of providers who care for them

would be greatly limited in their ability to help develop and

implement new policies that improve the health care of our

nation's seniors. An executive branch Medicare board would

also effectively eliminate Congress's ability to work with

the Centers for Medicare and Medicaid Services to create and

implement demonstration and pilot projects designed to

evaluate new and advanced policies such as home care for the

elderly, the patient-centered medical home, new less invasive

surgical procedures, collaborative efforts between hospitals

and physicians, and programs designed to eliminate fraud and

abuse.

The creation of a Medicare board would also effectively

eliminate state and community input into the Medicare

program, removing the ability to develop and implement

policies expressly applicable to different patient

populations. Instead, national policies that would flow from

such a board would ignore the significant differences and

health care needs of states and communities. Geographic and

demographic variances that exist in our nation's health care

system and patient populations would be dangerously

disregarded. Furthermore, all providers in all states would

be required to comply even if these policies were detrimental

to the patients they serve. Such a commission could not only

threaten the ability of Medicare beneficiaries, but of all

Americans, to access the care they need.

Finally, as the people's elected representatives, we much

oppose any proposal to create a board that would surrender

our legislative authority and responsibility for the Medicare

program to unelected, unaccountable officials within the very

same branch of government that is charged with implementing

the Medicare policies that affect so many Americans.

Therefore, we must strongly oppose the creation of IMAB,

IMAC, a reconstituted MedPac or any Medicare board or

commission that would undermine our ability to represent the

needs of the seniors and disabled in our own communities.

Again, we urge you to reject the inclusion of these or any

like proposal in health reform or any other legislation.

Sincerely,

Richard E. Neal; Mary Bono Mack; Patrick J. Tiberi; Phil

Gingrey; Marsha Blackburn; Joe Courtney; Stephen F.

Lynch; Michael C. Burgess; John Lewis; Jerry McNerney;

James P. McGovern; G. K. Butterfield; Bill Cassidy; Jim

McDermott; John W. Olver; Doris O. Matsui; Fortney Pete

Stark; Timothy H. Bishop; Allyson Y. Schwartz; Shelley

Berkley.

David P. Roe; Brett Guthrie; Mike Rogers; Henry C.

``Hank'' Johnson, Jr.; Linda T. Sanchez; Eric J. J.

Massa; Michael E. Capuano; Donna M. Christensen; Susan

A. Davis; Daniel Maffei; Michael M. Honda; Laura

Richardson; John Hall; Sam Farr; John Fleming; Yvette

D. Clarke; Kendrick B. Meek; Alan Grayson; Mike

Thompson; Edward J. Markey.

Eliot L. Engel; Gary L. Ackerman; John F. Tierney;

Edolphus Towns; Carolyn B. Maloney; Nita M. Lowey;

Donald M. Payne; Gregory W. Meeks; Lynn C. Woolsey; Ken

Calvert; Bob Filner; Pete Sessions; Steve Buyer;

Jerrold Nadler; Dana Rohrabacher; Brian P. Bilbray;

Gene Green; Barney Frank; Wm. Lacy Clay; Maurice D.

Hinchey.

William D. Delahunt; Bill Pascrell, Jr.; Steve Kagen;

Steve Israel; Joseph Crowley; Ginny Brown-Waite.

Mr. President, President, I rise today to introduce the Enforcing Orders and Reducing Circumvention and Evasion Act, or the ENFORCE Act, of 2011.

For almost a century, Democratic and Republican Administrations have promoted and protected America's anti-dumping and countervailing duty laws. These laws recognize the reality that foreign competitors don't always play by the rules. Some employ unfair and unscrupulous trade practices that put American businesses at a serious disadvantage. So, when it comes to ensuring that American businesses and workers have a level playing field to compete, anti-dumping and countervailing duty laws are the first line of defense.

But it is not enough to just pass these laws; they need to be enforced. Duties don't work unless they are assessed and collected. But just like some people cheat their way out of taxes, the same is true for foreign supplies and dishonest importers who evade and flout the anti-dumping and countervailing duties that protect American business and workers from grievous economic harm.

These suppliers and importers are what I call trade cheats.

You see, under U.S. trade laws, when a certain import is found to be unfairly traded, that is, it benefits from government subsidies or is sold below market prices, the U.S. Department of Commerce imposes additional duties on these imports. These duties, we call them anti- dumping and countervailing duties, or AD/CVD, ensure that American producers are only asked to compete on a playing field that is level.

But we have these trade cheats out there. They cheat American taxpayers out of the revenue that is supposed to be collected on imports, and which is needed to reduce the budget deficit, and they cheat American producers out of business that may otherwise be theirs. In short, the trade cheats steal American jobs and America's treasure.

The trade cheats are increasingly, and brazenly, employing a variety of schemes to evade AD/CVD orders. Sometimes, they hustle their merchandise through foreign ports to claim that it originates from somewhere it doesn't. Other times, the trade cheats will provide fraudulent information' to government authorities at American ports of entry, or they engage in schemes to mislabel and misrepresent imports.

In recognizing this problem, I convened a hearing in the subcommittee on international trade, customs and global competitiveness entitled ``Enforcing America's Trade Laws in the Face of Customs Fraud and Duty Evasion'' in May of this year. At this hearing we heard from Senators of both political parties and companies from across this nation about their concerns regarding this lack of enforcement. Others launched their own investigation into the matter.

My own staff on the Finance Subcommittee on Trade, Customs and Competitiveness learned that if often takes Customs and Border Protection, CBP, nearly a year to ask its sister agencies for investigatory help when it is needed and when CBP does refer a case to an outside agency they don't follow-up to ensure that it gets handled. It generally takes several years for the government to conclude an investigation into evasion and reassess the appropriate duties that should have been collected.

Customs and Border Protection, is the nation's frontline defense against unfair trade and is responsible for enforcing U.S. trade remedy laws and collecting AD/CV duties. Yet, if you listen to the concerns of domestic producers, like those who testified at my hearing, timely and effective enforcement of AD/CVD orders remains problematic and AD/CV duty evasion continues, seemingly unabated.

While Immigration and Customs Enforcement, or ICE, and CBP are dragging their feet to enforce our trade laws, this country's domestic manufacturers are being hammered by foreign trade cheats. It is not like the cheaters wait around to get caught and pay their fines, they disappear long before the so called government watchdogs arrive. ICE and CBP are the two principal American government agencies that are supposed to police this beat. In my view, one of them, CBP, treats allegations of duty evasion like junk mail. The other, Immigration and Customs Enforcement, has been more visible on the issue of alleged illegal movie downloads than taking steps to protect tens of thousands of manufacturing jobs that are threatened by unfair trade.

Such lollygagging is not only hurting our domestic producer, it is hurting our country's treasury. U.S. industry sources estimate that approximately

$91 million in AD/CV duties that were supposed to be applied to just four steel products went uncollected as a result of evasion in 2009. This is an amount equal to 30 percent of all AD/CV duties CBP collected that year. With 300 current AD/CVD orders in place on countless products from over 40 countries, the potential for AD/CV duty evasion is vast, and hundreds of millions of AD/CV duties may be unaccounted for. Every penny counts and we have an obligation to the American businesses, and the workers they rely on, to do a better job.

The bill I am introducing today, with Senators Snowe, McCaskill, Blunt, Brown from Ohio, Portman, and Schumer, will go a long way toward empowering the federal government to do a better job to combat the trade cheats and enforce U.S. trade laws. I would like to highlight just a few of the main provisions.

First, the ENFORCE Act would formalize a process by which allegations of evasion are acted on. Because CBP primarily relies on the private sector to identify evasion of AD/CVD, the ENFORCE Act would formalize that process by allowing stakeholders to file a petition alleging evasion and require CBP to initiate an investigation pursuant to the petition within 10 days.

Second, our bill would establish a rapid-response timeline by which CBP would investigate allegations of evasion. The ENFORCE Act would give the CBP 90 days, after an investigation of evasion begins, to make a preliminary determination into whether there is a reason to believe an importer is evading an AD/CVD order. So if an affirmative preliminary determination is made, AD/CV duties would be required to be collected in cash until the investigation is concluded and any entries of subject merchandise would not be liquidated by CBP in order to ensure that the correct amount of duties owed can be collected. CBP would also be required to make a final determination as to whether merchandise subject to an investigation under the bill entered into the U.S. through an evasion scheme within 120 days after CBP has issued a preliminary determination. Flexibilities are added to these timelines for cases that are complex. All of this would put an end to the lollygagging that our domestic producers would desperately like to see ended.

Third, the ENFORCE Act would help facilitate information sharing. Our bill would establish clear instruction and guidelines to promote appropriate information sharing among the various agencies to better combat evasion and protect consumers from unsafe goods. Everyone knows that the more information law enforcement agencies have, the better they are able to do their jobs.

Last and certainly not least, our bill would establish accountability. CBP's broad mandate to facilitate trade, enforce trade remedy laws, and protect national security often leads to inconsistent efforts to combat evasion of the trade remedy laws. The ENFORCE Act would require CBP to provide annual reports to us here in Congress about the effectiveness of its enforcement efforts and the job it is required to do to protect American producers from the harm of unfairly traded imports.

As you can see, this bill presents a common-sense strategy to combat trade cheating and the evasion of antidumping and countervailing duty collection. Enforcing U.S. trade laws and combating unfair trade practices must be a central pillar of an economic and trade policy that is designed to promote economic growth and job expansion, especially as we continue to recover from a recession.

I want to take a moment to recognize and thank some terrific colleagues of mine in the Senate that are joining me in introducing this legislation. I thank you, and your staff, for your help and for your efforts. I would also like to thank the Retail Industry Leaders Association, the Committee to Support U.S. Trade Laws, and the Coalition to Enforce Antidumping & Countervailing Duty Orders for their valuable input. I look forward to more of their input going forward.

I look forward to working with my colleagues in the Senate and with my friends in the House of Representatives to build support for this initiative and to take action on behalf of American producers.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Madam Chair, I have an amendment at the desk.

I yield myself such time as I may consume.

I have a very simple amendment today. It's the Good Samaritan Health Professionals Amendment. This amendment would allow trained medical professionals to volunteer across State lines to assist in Presidentially declared Federal disaster sites.

My colleagues, in the aftermath of Hurricane Katrina, we saw firsthand how much of a demand there is for trained professionals at disaster sites and how there is a need to provide liability protection for these very experienced individuals.

According to the Council of State Governments, the most pressing need immediately after Katrina was the availability of medical volunteers. However, out-of-state practitioners providing medical treatment face the real possibility of noncoverage under their medical malpractice policies. Those that volunteer and treat the sick are at risk of violating existing statutes and potentially facing criminal or administrative penalties or civil liabilities.

A Baton Rouge newspaper, The Advocate, ran a story in September 2005 that talked about Dr. Mark Perlmutter, who was in the midst of giving a woman chest compressions when FEMA asked him to stop because of issues of liability protection.

CNN ran a story about a doctor who was evacuated to the New Orleans' airport. The doctor was amazed to see hundreds of sick people and wanted to help them. He wanted to ply his professional talents and heal the sick, but

was prevented from doing so because of legal liability. ``They told us, you know, you could help us by mopping the floor,'' and that's what he was forced to do. And so he mopped the floor while people died all around him.

What was the cost of inaction because of the litigious society that we have? It's incidents like these, my colleagues, that's why I introduced the Good Samaritan Health Professionals Act, H.R. 3586. It's a very simple bill, and its the foundation for this amendment to the PATH Act.

This amendment would allow medical professionals to volunteer at disaster sites. It would provide limited civil liability protection to medical volunteers who act on a good faith effort.

This is limited protection. It still allows victims to sue for serious acts such as criminal misconduct, reckless misconduct, or gross negligence. It does not cover criminal acts by health volunteers.

You shouldn't have someone that spent years in college, years in medical school, through residency, spent years as a practicing physician, push a mop when there's clear need for their services. This is wrong, and my amendment will correct that.

My colleague from Utah Mr. Matheson and myself have a very simple amendment today. It is the Good Samaritan Health Professional Amendment. This amendment would allow trained medical professionals to volunteer across State lines to assist at presidentially declared disaster sites.

In the aftermath of Hurricane Katrina, we saw first hand how much of a demand there is for trained professionals at disaster sites and how there is a need to provide liability protection.

According to the Council of State Governments, the most pressing need immediately after Katrina was the availability of medical volunteers.

However, out-of-State practitioners providing medical treatment face the real possibility of non-coverage under their medical malpractice policies. Those that volunteer and treat the sick are at risk of violating existing statues and potentially facing criminal or administrative penalties or civil liability.

A Baton Rouge newspaper, The Advocate, ran a story in September 2005 that talked about Dr. Mark Perlmutter, who was in the midst of giving a woman chest compressions when FEMA asked him to stop because of issues of liability protection.

CNN ran a story about a doctor who was evacuated to the New Orleans airport. The doctor was amazed to see hundreds of sick people and wanted to help. He wanted to ply his profession and heal the sick, but was prevented from doing so because of legal liability. ``They told us, you know, you could help us by mopping the floor.'' And so he mopped the floors while people died around him.

What was the cost of inaction because of our litigious society?

Its incidents like this, that's why I introduced the Good Samaritan Health Professional Act, H.R. 3586. It's a very simple bill, and it's the foundation for this amendment to the PATH Act.

This amendment would allow medical professionals to volunteer at disaster sites. It would provide limited civil liability protection to medical volunteers who act on a good faith effort.

This is limited protection. It still allows victims to sue for serious acts such, as criminal misconduct, reckless misconduct or gross negligence. It does not cover criminal acts by health volunteers.

But for everyone working in good faith and doing the right thing, it will provide this basic protection to any trained medical volunteer. It will protect:

Doctors, nurses or physician assistants that treat the injured;

The psychiatrist, psychologist or therapist that provide emotional assistance to those grieving, and;

The pharmacists or respiratory therapists that helps treat chronic conditions like diabetes or COPD.

You shouldn't have someone that spent years in college, years in medical school, been through residency, and spent years as a practicing physician, push a mop when there is a clear need for their services.

This is wrong, and my amendment will correct this.

The Good Samaritan Health Professional Amendment has a broad coalition of supporters. They include:

The American College of Surgeons

The American Medical Association

The American Hospital Association

The College of Emergency Physicians

The Neurologists

The Physician Insurers Association

The Roundtable of Critical Care

These are just a sample; there are more medical groups that support this amendment. I also would like to submit these letters of support into the Record.

This is a good amendment. It will save lives.

American College of Surgeons,

March 21, 2012.

Hon. John Boehner,

Speaker of the House of Representatives,

Washington, DC.

Dear Mr. Speaker: On behalf of the more than 78,000 members

of the American College of Surgeons (ACS), I would like to

express our support for amending H.R. 5, the Protecting

Access to Healthcare (PATH) Act of 2011 to include H.R. 3586,

the Good Samaritan Health Professionals Act of 2011 (Stearns/

Matheson Amendment). The ACS supports this amendment which

would ensure disaster victims' access to medically necessary

care in a declared emergency.

Rapid medical response in a disaster can greatly decrease

loss of life and improve outcomes for patients who

desperately need assistance. Surgeons in particular, with

their training in trauma and critical care, play a major role

in the health care community's response to most disaster

situations. Properly trained volunteers are critical in such

circumstances.

However, due to inconsistent state laws and lack of federal

policy, it is often unclear whether protections against

unnecessary lawsuits exist for medical volunteers who cross

state lines. Sadly, this lack of uniformity has greatly

hindered the ability of volunteer health professionals to

provide care; in some cases, volunteer health professionals

have even been turned away due to uncertainty about potential

liability.

Enactment of the Stearns/Matheson amendment would provide

volunteer health professionals with the same level of civil

immunity that they have in their home state when they provide

urgently needed care in a declared emergency. Removing

barriers that prohibit licensed surgeons and other qualified

health care professionals from voluntarily administering

medically necessary care during disasters will ensure

citizens access to high-quality surgical services in the

event of a crisis.

Again, we strongly support the Stearns/Matheson amendment

to H.R. 5 and look forward to working with you to ensure its

enactment.

Sincerely,

David B. Hoyt, MD, FACS,

Executive Director.

Madam Chairman, how much time do I have left on my side?

The one thing I would say to the gentleman, this is not unlimited. As I pointed out, there are provisions to allow for stipulations.

I yield 1 minute to the cosponsor on the Democrat side, Mr. Matheson from Utah.

Mr. Conyers, the point is this is a Federal disaster, and a Federal disaster like Katrina, in which the Federal Government is involved, you want to have a bill that's a Federal bill.

Madam Chairman, I'd just say that the 50 State laws are not allowing a physician to help. He has to mop the floors.

I yield 45 seconds to Mr. Franks from Arizona. He's chairman of the Constitution Subcommittee of the House Judiciary Committee.

Madam Chair, I demand a recorded vote.